Lead Opinion
The opinion of the court was delivered by
This was an action on a judgment rendered in the circuit court of Kane county, Illinois. Said judgment was rendered in the spring of 1872, upon two notes executed in March 1859. Attached to each note was a warrant of attorney authorizing “ Charles Wheaton, Esq., or any other attorney of any court of record,” to enter appearance, waive process, and confess judgment. Upon these warrants, and without any service of process, or other appearance, judgment was entered in vacation. It is insisted that this judgment having been entered in vacation, was a nullity, and Mifflin v. Stalker, 4 Kas. 283, is cited as authority therefor. But that case simply decides as to the practice in this state, and the authority to enter judgments in our courts at other than the regular terms. ■ And the question here is, not whether such judgment would be valid, if entered in this state, but was it valid in Illinois, where it was entered? French v. Pease, 10 Kas. 54. Now, this court will take judicial knowledge of the constitution of the state of Illinois, so far as this question is involved. Butcher v. Bank of Brownsville, 2 Kas. 70. And by that constitution we find that the circuit court is one of general original jurisdiction. Being a court of general jurisdiction, the presumption, is in favor of the authority which it assumed to exercise. Though the mode of procedure
. Again, it is urged that the warrant of attorney authorizes “Charles Wheaton, or any other attorney of any court of record,” to appear and confess. And the record shows that one W. J. Brown appeared and confessed, and that there is no evidence that he was an attorney of any court, and he signes himself, “attorney-in-fact” for defendant. We suppose the designation was correct, for one authorized by such a warrant of attorney is an attorney-in-fact; and in the recital of the judgment, it reads, “that the plaintiff appeared by T. C. Mooi’e his attorney, and the defendant, by W. J. Brown his attorney.” This recital is evidence prima facie at least, that both Moore and Brown were attorneys off the court in which the judgment was entered. But passing these considerations, it was for the defendant, upon the principles heretofore stated, to overthrow the presumption in favor of this judgment by showing if he could that W. J. Brown was not an attorney of a court of record. It is useless to inquire as to the cir
One other question remains. Counsel contends that no action can be maintained on this judgment because of § 1 of ch. 87, laws of 1870, which among other things, provides:
“And no action shall be maintained in this state, or any judgment or decree rendered in another state or country against a resident of this state, where the cause of action upon which such judgment or decree was rendered could not have been maintained in this state at the time the action thereon was commenced in such other state or country by reason of lapse of time.”
Of the applicability of this statute there can be no question. The notes were more than twelve years past due, when the proceedings were commenced in the circuit court of Kane county; and the only testimony, that of Dodge himself, showed that he had been a resident of this state for the last thirteen years, and had not been back to Illinois since 1859. But a statute in all essential particulars exactly like this has been before the supreme court of the United States, and declared unconstitutional and void, as conflicting with § 1 of art. 4 of the federal constitution, which ordains that “ full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The statute which was before that court was a statute of Mississippi, and in these words: “No action shall be maintained on any judgment or decree rendered by any court without this state, against any person who at the time of the commencement of the action in which such judgment or decree was or shall be rendered was or shall be a resident of this state, in any case where the cause of action would have been barred by any act
There being no other question in the case, the judgment will be affirmed.
Dissenting Opinion
dissenting: I cannot concur with my brethren in what they say in the' first paragraph of the syllabus, and the corresponding portion of the opinion. They hold that this court can take judicial notice of the contents of the constitutions of sister states, so far as such constitutions define the jurisdictions of the courts of such states. Now if this court can do so, of course every other court in the state may do so, and not only may do so, but must do so, for a court that can take judicial notice of a thing is not at liberty to refuse when legally called upon to do so. And if courts can take judicial notice of the constitutions of other states, for the purpose of ascertaining the jurisdiction of their courts, I know of no good reason why they should not also take judicial notice of their statutes, for the same purpose. The jurisdictions of many of the'courts of other states are not in any manner defined by their constitutions, but are defined by their statutes, or by their statutes and usage; and if we are to take judicial notice of the jurisdictions of the courts of other states, we must look into their statutes as well as into their constitutions. And if we can take judicial notice of the constitutions and statutes of other states for one purpose, I know of no good reason why we should not take judicial notice of such constitutions and statutes for all purposes. But the jurisdictions of the courts of other states sometimes rest, partially at least, upon their common law, or upon immemorial usage, or upon judicial decisions. Now, must we also take judicial notice of the common law, the immemorial usage, and the judicial decisions of such other states? To take judicial notice of the laws of other states,